How honest are your potential jurors? I don’t know about you, but lately, I’ve seen a rash of lying jurors. And the sad part is, there doesn’t seem to be any guaranteed way to catch them. In a recent two week span, I selected juries for five different cases. And in almost every single case, at least one juror lied to me, my opponent, or the court.
In criminal cases, one of the issues I almost always inquire about is whether any of the jurors have ever been charged with a crime. I explain that it doesn’t matter whether it was a misdemeanor or a felony, and it doesn’t matter whether it was dismissed or whether they went to prison. Usually, I’ll ask a question like, “Have you, or someone close to you, ever been arrested or charged with a crime?” Then I’ll ask for a show of hands to see who falls into that category. Probably every criminal prosecutor and defense attorney asks something similar. They understand how important it is to know whether or not any of the potential jurors have ever been charged with a crime.
In the five cases I recently tried, every juror on every panel was asked whether they had ever been charged with a crime.
But here’s the interesting twist: I wasn’t trying to discover whether or not they’d ever been charged with a crime — I wanted to determine who would be honest about it. I already knew what their answers should be. In our jurisdiction, we have access to a statewide criminal history program, and run a criminal history check on every potential juror. In addition, I have a computer in the courtroom, and can pull up more detailed information from the clerk’s office or the case management system.
Every juror on every panel was asked whether they had ever been charged with a crime, and in almost every single case, at least one of them lied.
After we completed questioning of the entire panel, we asked the judge to bring some of the jurors back into the courtroom for individual questioning. Almost without fail, once we confronted them about their lie, they would admit the truth. We heard a variety of reasons why they hadn’t been honest:
One said he’d “forgotten.” “Forgotten?!?” This guy wasn’t just given a ticket or a Notice to Appear — he’d spent the night in jail. Quick, do me a favor and take this pop quiz: How many times have you ever been handcuffed, arrested, and transported to the county jail? Is that something you “forget?” (Especially if it only happened 4 or 5 years ago…)
I asked another, “Why didn’t you tell us about the time two years ago when you were sentenced to probation after you got caught acting as a lookout for a burglary?” Confronted with the details, he shifted uncomfortably in his chair, then said he thought it didn’t count, because he hadn’t been adjudicated.
There were a few other notable comments, but the most memorable was the guy who’d been arrested, convicted of a crime of violence, and sentenced to a lengthy jail sentence. His reason for not telling us? He just didn’t want to. If I hadn’t had the details of his arrest and conviction in front of me, we never would have learned about his prior arrest.
Unfortunately, these lies may not be uncovered until after they’ve affected your verdict. For example, earlier this year, a $28,000,000 plaintiff’s verdict was thrown out and a new trial ordered because three jurors lied during jury selection. The defense attorney had asked whether anyone had ever been involved in a lawsuit. Two of the jurors didn’t raise their hands at all (one had been sued twice, the other three times), and the third admitted she’d filed a lawsuit, but didn’t mention the other nine times that she’d been sued.
We don’t want to believe it, but some potential jurors will lie to us. These lies affect the integrity of the jury system and the validity of your verdict. I wish I could give you a secret formula for catching every lie and keeping those potential jurors off of your jury, but there’s no perfect solution. The best I can recommend is that you make a clear record so that you can ask the court for help if you do uncover a lie.
If you ask, “Has anyone ever been arrested for any crime?” and none of the jurors raise their hands, make sure you create a record. Say something like, “None of the potential jurors raised their hands” or, “Let the record reflect that no one has raised their hand.” Then, if you discover that one of the jurors has a criminal record, the court will have something to act upon. Without that statement, your appellate record will be ambiguous as to whether or not the any jurors responded to your question.
You won’t be able to catch every lie, and not every lie you catch may matter. But if you do catch someone in a lie and you think it affected your verdict, make sure you have a record that lets the court help you out.